This post is on how American courts deal with business cases involving foreign parties and foreign or international law as that law applies to such cases. No more, no less.

Many years ago, I was representing a Canadian-Australian manufacturer in a big case down in Texas along with two truly excellent Dallas litigators. At some point in the case, I had the “brilliant” idea of arguing that US Federal law had preempted Texas state law, mandating dismissal of plaintiff’s claims against my client. We settled the case before the court could hear my preemption argument, but I still remember the half-joking advice I received from Texas local counsel. It was something along the lines of, “forget about federal law, this is Texas; we don’t recognize federal law down here.”

I am beginning to wonder about the willingness of US courts to apply foreign or international law, even in those instances where US law calls for such application.

In a few months, I will be in Las Vegas (I count myself among the people who love Vegas!) speaking on the Hague Convention rules on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, as they apply to Chinese companies. Based on my firm’s experience with getting US courts to recognize international law, I am sorely tempted to just say something like, “forget about international law. This is the United States. We don’t recognize international law here.” Go ahead, just stick your summons and complaint in a bottle, throw it in the ocean, that ought to be enough for you to get a default judgment anyway. And since China never enforces US judgments anyway, why does it matter?

I am sure my speech will be a bit more nuanced by the time I get there, but you get the point.

For at least the third time (two times is coincidence, three times is a trend), a US court has allowed a case to go forward against a defendant despite plaintiff’s having clearly failed to abide by the Hague Convention Rules on international service of process. The most recent instance is in a still pending case so I cannot go into the specifics on that one.

Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention’s technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first — forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.

US court judgments usually are not enforceable outside the United States and one of the reasons given for this is the failure of American courts to recognize foreign law. My foreign clients (these are international businesspeople, not in any way anti-American) are complaining to me more and more about US courts and how “they think they can ignore the rest of the world.” One particularly piqued client (from a country very friendly to the United States) pointedly told me this is one of the reasons why America is becoming more and more hated and why we are losing our power. He insisted that the courts in his country would have ruled differently on the same issue and I think he is correct.

If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.

Dan Harris is internationally regarded as a leading authority on legal matters related to doing business in China and in other emerging economies in Asia. Forbes Magazine, Business Week, Fortune Magazine, BBC News, The Wall Street Journal, The Washington Post, The Economist, CNBC, The New York Times, and many other major media players, have looked to him for his perspective on international law issues.

I’d be curious what is involved with the Hague Convention. I’m not sure the issue is nearly as easy to state either way. You note a client who said “this is one of the reasons why America is becoming more and more hated and why we are losing our power” – to which, as a Canadian I say poppycock. In all likelihood the US has increased wealth at a significantly faster pace than that friendly country – but rather because the world’s wealth is growing the US can’t help but have some economic power diluted – but this hardly means that they are becoming less wealthy. Americans are hated because of their level of innovation and as a result, wealth, and from wealth, their military strength. Anti-Americanism is hardly a new phenomenon and at its root, jealousy I would suggest.
Was the US a signatory? If it was, then the answer is simple, can it not be said then that international law is in fact US law? As a general principle however, the idea of international law is a frightening prospect particularly when it takes precedence over local sovereignty. Can we really pick and choose? Once business law is argued to apply, should not what gets “passed” at the UN or “voted on” by a majority of despots around the world be it about business or otherwise apply to the US or any free nation? Strikes me as a rather dangerous and slippery slope.
Economic growth and further, globalization requires rule of law – of this I think there can be no doubt. But whose law? When trading internationally, one should have the expectation that one is bound in some part to the local laws of the country – and it ought to be a consideration when making that trade. Thus the question of whether American courts are legally bound by the Hague treaty is a crucial one is it not? I would be curious why, if this treaty was signed by the US political branch the US judicial branch would reject it.
And then when the two are in conflict, frankly I would tend to trust US law over some “global” bureaucrat. Political power, and consequently the legal power that comes with it, as a principle ought to be local and decentralized if one agrees that power corrupts. When it comes to trade, is that not why organizations/treaties like the WTO exist? Are these not meant to be an outlet for international disputes? Every country acts in its self interest, why should trade (and Americans) be any different? Countries belong to treaties because they see a benefit – if Americans were to reject treaties at any given time because of self interest, why would anyone bother to respect treaties that involve the US? Seems like there is a lot more than meets the eye?

It’s one thing to choose to opt out of international law when the US is unquestionably the greatest political and economic power in the world; it is another when it is just another economic and political power among many and is trending downwards.

There are some interesting US constitutional issues here. (One fun one is that the term treaty means something different in US law and in international law.)
One of which is the difference between self-executing and non-self-executing treaties under US law. What happens in some situations is that the US signs a treaty, but in order to enforce the provisions of the treaty it requires that Congress pass implementing or enforcement legislation. What I’m guessing has happening in this case is that Congress has not passed this legislation, and so the courts are ruling that while a party is in breach of treaty obligations that there is no remedy for this breach.
Another issue is the interaction between state and federal law. A treaty ratified with the approval of the US Senate can override state law, but an international agreement that has not been cannot.
In this case, what I’d do is to look through Federal law to find something that you can use to argue that Congress has passed some sort of remedy for a private party breaching a treaty.
Also one *big* difference between US law and European law is that European states believe that international law can override everything, and that in a conflict between international and national law, international law wins (there is a specific article in the German Basic Law that says this and the Factome case in Britain was a situation in which a national law was striked for being in conflict with EU law).
By contrast under US and Chinese law, international agreements by themselves to not override national law.

But how common is this in other countries? Does France have a good track record of following international law, just EU law or just French law, especially in local courts?

Law Office of Todd L. Platek

Dan, I’d love to agree with you but simply cannot. My experience in various federal courts in maritime, bankruptcy and other commercial matters has shown that federal judges are aware of foreign laws and give them due weight, under the Federal Rules of Civil Procedure, Federal Rules of Evidence, and case law.

Law Office of Todd L. Platek

CLB, they sure are right about Texas state court. And Louisiana state court is even more fun.

Growth Matters,
1. Of course it is “poppycock” to blame US hatred on our court system, but it is not so far-fetched to blame it on the US tendency to think we do not need anyone else. In fact, the person who told me this lived in the US for many years and intends to return. He is not just making this stuff up — he meant it. The friendly country from which he comes is booming. I generally agree with you that “Anti-Americanism is hardly a new phenomenon and at its root, jealousy I would suggest,” but not always.
The US was and is a signatory to the Hague Convention on service, but the trend here in the US is not to worry about proper service, once it is clear that the defendant has notice of the case. US law tends to place form over substance more than other countries, and I am just fine with that, in most instances.
You are absolutely right that “as a general principle however, the idea of international law is a frightening prospect particularly when it takes precedence over local sovereignty” but I say that if we have a problem giving up some sovereignty (and oftentimes we should) then we should not give it up. But it is not fair to sign a treaty giving up the sovereignty and then pretty much ignoring that we signed it. Not fair and not honest. We signed on to the Hague Convention on service so your analogizing it to “what gets ‘passed’ at the UN or ‘voted on’ by a majority of despots around the world be it about business or otherwise” does not apply.
This is not a question of trusty US law over some “global bureaucrat.” I agree power corrupts, but again, not an issue here.
I also agree that “every country acts in its self interest …. [an.d no reason why] trade (and Americans) [should] be any different,” but again, that is NOT the issue here. We signed on to this and you can make as many arguments as you want as to why we should not have (I am no lover of the UN, let me tell you, but I do think the Hague Convention on Service makes sense for the US), but once we did sign on, we, as a law abiding nation, have an obligation to abide by it.

Paul,
You seem so eager to slam the US here that you have missed the point of the post. It also is just not true that the US is trending downwards. It is only to the extent other countries are rising.
The post is not about the US opting out of international law, it is about the US saying it is opting in, and then quietly not really doing so.

TwoFish,
You are right in contrasting our system with Europe’s, but in the case of the Hague Convention on Service, the US is officially a signatory, and therefore it should be the law of the land when it comes to international service of process.

nh,
I don’t really know. I get the sense European countries are much better with this than the US, but not certain. I think most countries are better about this than the US, but again, I am not certain.

Todd Platek,
New York versus West Coast maybe?
Never been in an Louiiana court, but been hometowned in enough places to have a good sense for it.

Law Office of Todd L. Platek

CLB: West Coast good too. USDJ Charles Breyer in SF entertained a lengthy Chinese corporate law issue in my Sinotrans defendant’s case a few years ago, until my big-firm opponent got frustrated and threw in the American towel, yielding a settlement at 25%. We held the final settlement conference in the US Magistrate’s office, in my NY-accented Mandarin. No justice for foreign law here? It’s out there, so go for it.

China Law Blog:
Thanks for the clarification. I agree with you – if the US signed it, they ought to abide by it (though based on signatories and success of the Kyoto Accord without getting into the politics, it seems clear that the US is not the only country that signs and ignores the treaties it signs). I am curious, what the convention is for when laws are in conflict, how is it decided which laws take precedence within an American context? Can you appeal to a federal court or are these things always fought federally anyway?
Presumably that trade related issues are also not as clear cut – e.g. enforcement of personal liberties and free speech can fall into trade for some countries… if I’m not mistaken, this can be an issue? But presumably the US entered the treaty aware of the issues. (And just to clarify on that point though, my reference to the UN was more with respect of a potential nightmarish possibility if the US signed a treaty that created an organization that continually reinterpreted or created new interpretations of the original treaty to the point that it was unrecognizable; though I am assuming you are talking of a more general and simple example.) What are the remedies to violations of the treaty (for if there are not, how useful is that treaty to begin with; alternatively are these avenues just too cost prohibitive to pursue)?
Thanks.

A post on China Law Blog entitled, Who Needs International/Foreign Law? Not Us, We’re Americans, raises a number of transnational law issues and is well worth a read. Dan Harris, the author of the post, questions whether or not US courts have an obliga…

: You are right in contrasting our system with Europe’s, but in the case of the Hague Convention on Service, the US is officially a signatory, and therefore it should be the law of the land when it comes to international service of process.
But as far as I can tell, the Hague Convention merely states a process for service. It doesn’t mandate what happens if that service is incomplete, and what happens in that case is a matter of national domestic law.
One facet of American law is that judges have a lot of discretionary powers and general prefer substantive outcomes over procedural forms. That’s usually considered a good thing.
I think it matters the type of law. Maritime law and bankruptcy law are areas in which judges have particularly little discretion since there are federal matters. In the case of bankruptcy law, the law is purely federal statutory and the courts are federal. In the case of maritime law, the law is federal even if the court is a state court, and maritime law is based on Roman law and not English common law.
Louisiana state courts are fun since Louisana private law is completely based on French law. Texas and southwestern state courts have large amounts of Spanish law which means that precedents and decisions elsewhere don’t necessarily apply.
But as far as procedural law, judges have a lot of discretion to do what they think is fair.

I’m not eager to slam the US; however, there is a need to point out how out of touch and out of sync the feeling that the US does not need to follow international conventions and rules is, not just legally, but in policy, has hurt the US, especially over the past eight years.
As for the US trending downwards, that is an objective reality. Look at the markets and the US dollar; the markets always speak more loudly than what politicians say. Have you been to Europe lately? Have you noticed a change in their attitudes to the US and US citizens, many of whom do not support what has happened in the US over the past eight years?
How is pointing that out and criticizing that “slamming the US”? When you say that I am slamming the US, aren’t you putting me in the same tent as the guy who said “You are either with us or against us”? Criticizing certain aspects of prevailing thought and behavior in the US, or any other country, has nothing to do with being for or against that country and people.
We are intelligent people here on this blog, we can do better than that.
The governments of large countries such as the US and China all try to mold their own worldview into reality; sometimes they succeed and sometimes they fail. Just because governments try to do that is no reason why we as individuals have to support those efforts, even though we are their subjects and citizens. As a thinking person, I reserve the right to speak out.

Wayne Parker

I am a maritime associate attorney who previously represented clients in litigation before the US District Court for the Southern District of New York. I’ve represented several plaintiffs in differing maritime attachment actions (Supplemental Rule B of the FRCP) where the opposing defendants were Chinese entities that did not have a presence in the district, as well as one action where I defended a Chinese client against a European plaintiff seeking to attach electronic funds transfers here in NYC under the same admiralty supplemental rule. In each of these instances, the US district court required strict compliance with the provisions of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and in the cases where we represented the plaintiff found that we had complied with the Convention’s requirements, including the costly evolution of translating the complaint, summons and other documents into Chinese.
Admittedly, most federal and state judges in the United States are not even aware of the existence of the Hague Convention. But my experience before the Southern District is that once you convince a US district court judge that the Convention’s provisions should apply, s/he will require compliance. Perhaps because maritime attachment and arrest are ex parte procedures, US district court judges may be more inclined to require strict compliance with the Hague Convention to ensure that the foreign party receives the full benefit of due process. If the court in question does not enforce compliance, then either the Convention did not apply (the case decisions on the applicability of the Hague Convention’s provisions are not numerous but they are complex; lazy lawyering will not suffice) or the judge made a reversible error. One should also remember that a district court’s failure to apply the Hague Convention where it should apply is an error in law subject to de novo review by an appellate court.
The bottom line is that it is the legal and professional responsibility of parties’ counsel to properly research the legal requirements for service of process, to ensure their client and the opposing party are in compliance with the Convention’s requirements and that the court is properly briefed on those requirements. Where the Hague Convention applies, the court of first instance should be made aware of that fact. As explained above, my experience is that once a federal judge (or at least those in the Southern District of New York) is made aware that the Convention applies, s/he will require compliance with the Hague Convention and will not hesitate to dismiss an action where plaintiff’s counsel failed to properly serve the defendant per the Convention’s provisions. Plaintiff’s counsel therefore had better ensure they comply with the Convention’s provisions where it applies if they wish to avoid having the action dismissed with the consequent embarrasment of explaining the dismissal to the client. Defense counsel as well should be aware of the Hague Convention’s requirements and be prepared to plead affirmative defenses if they believe there is improper service.

Twofish,
You say two things, one of which I agree with, one I do not.
I agree that “one facet of American law is that judges have a lot of discretionary powers and general prefer substantive outcomes over procedural forms. That’s usually considered a good thing.” I think that is what is happening here.
You also say that “But as far as I can tell, the Hague Convention merely states a process for service. It doesn’t mandate what happens if that service is incomplete, and what happens in that case is a matter of national domestic law.” I think that it does. If the service does not comply with the Hague Convention, it is not valid and the case should not proceed.

Paul,
My saying you are eager to slam the US is not the equivalent of saying all criticisms mean you are “against us.”
If you really think that you can say the US is “trending downwards” because we are right now (for the first time in a helluva long time) having economic difficulties, than all I can say is that you are neither much of an historian nor an investment analyst. I am not broke right now just because I only have $5 in my pocket and the US is not “trending downward” because of a blip right now. I will not predict where the US will be vis a vis China in 50 years, but I can promise you that during that time period there will be many years in which the US is decidedly trending up and trending down and the same will be true of China. If you want to ignore 200+ years of American history and base our future just on last year, go ahead, but you will never get me to agree that constitutes good analysis and you will also never get me to view anyone who employs that analysis as doing anything other than slamming the US way, way, way, too quickly.
I have not been to “Old Europe” lately, but I recently spent a considerable amount of time in Eastern Europe, where America is still incredibly highly regarded.
I also take issue with this, your concluding paragrpah:
“The governments of large countries such as the US and China all try to mold their own worldview into reality; sometimes they succeed and sometimes they fail. Just because governments try to do that is no reason why we as individuals have to support those efforts, even though we are their subjects and citizens. As a thinking person, I reserve the right to speak out.”
First off, I am not expressing any view simply because it is the view of my government. That would be silly. Yet, I cannot help but believe anyone who would say that is expressing a view against his government just to show that he can do so. Why even bring it up? Second, do you really think you need to “reserve the right to speak out?” Come on, nobody is stopping you, either here on this blog or anywhere else.

Wayne Parker,
The judges here are super strict on Rule B cases because they don’t like them. I wish I could describe this recent case a bit more, but instead, let me pose a hypothetical.
Should a construction company that does work on the US house of a foreign resident be required to serve notice of the lien on the foreign owner of the house? This was NOT the facts of my case, but one COULD argue they are similar.

Law Office of Todd L. Platek

Twofish: You are wrong about maritime law. Federal law does not control it, but rather the general maritime law of the USA does. See Romero v. ITO, USSC, 1959, Justice Frankfurter.
As far as our maritime law coming from Roman and not English law, this is one bizarre notion which you better bury with your other Roman relics. Our admiralty law comes directly from English admiralty law, with adjustments post-1783. The American Colonies had elaborate admiralty courts until after the Revolution. Please go back to Gilmore & Black, and about 10,000 cases. As far as state courts are concerned, the general maritime law usually controls, except where the Savings To Suitors clause trumps it.
Mr. Parker is right about the Hague Convention, with which judges in SDNY have much more than a passing acquaintance, both in terms of service of process and discovery issues. Unfortunately for our maritime practice in NY, Rule B actions occupy a much larger percentage of admiralty cases than we would like, but that’s our fate; collisions just don’t happen here anymore; forum selection clauses in bills of lading have all the cases leaving for foreign courts for the last 15+ years – nuts, Randy Donatelli; Jones Act cases died out in NY/NJ and longshoreman cases are few and far between too. Darn those huge containerships and the atrophy of the American flag vessel! With Kirlin’s, Haight’s and Burlingham’s gone, and continuing turmoil among admiralty firms in NY, and claims agencies edging in every which way, is life worth living, Wayne? The Gulf and West Coast are probably more blue water than NY at this point, and the MLA May dinner may be fated to depart Manhattan unless it’s outsourced to parts unknown.
I’m off to Qingdao for reincarnation.

Growth Matters says: “Countries belong to treaties because they see a benefit – if Americans were to reject treaties at any given time because of self interest, why would anyone bother to respect treaties that involve the US? Seems like there is a lot more than meets the eye?”
Good point – why would anyone bother to respect international treaties when the US doesn’t? Seems like despot nations have in recent years been much more daring in their defiance of the UN since George W decided to “go it alone” in Iraq for the sake of distributing oil contracts to his buddies. At the very least, it provides ammunition for countries like China to retort with whenever US politicians critizice them for just about any violation of treaties they’ve signed themselves, thereby justifying all manner of bad policies to their own people and the world.
Following and abiding by treaties that you’ve signed is not just in “self-interest,” but in the interests of all the citizens of other nations who have signed them as well.

Todd Platek,
I could not agree with you more about the decline of the maritime practice and consequent aging of the admiralty bar in the US. I worked at Haight Gardner Holland & Knight for 3.5 years and really enjoyed the practice of maritime litigation (now I practice maritime/shipping finance at a Wall Street firm with an established reputation in maritime finance). But all of the partners were 60 years + and looking forward to retirement within the next year or two. Unfortunately, the old, prestigious maritime firms have either closed shop or merged with much larger general purpose law firms that usually charge higher billing rates than many P&I Clubs, ocean carriers or other maritime players are willing to pay. That’s really unfortunate because in years past the US admiralty bar had a well-deserved reputation for being the bar association with the most “international” outlook for reasons that are obvious. It was the MLA (to give credit where it’s due) that pushed for signing and ratification of such treaties as the Hauge Convention, the Collision Convention of 1910 (never ratified), etc.
I also think you’re right that the locus of the maritime industry has shifted to the West Coast (my original home) due to the incredible rise in trans-Pacific trade over the last twenty years. The day may come when the MLA and other maritime groups in the US start to shift their focus to the West Coast and the Pacific but for now far too many of the senior citizens running things are committed to their East Coast origins and trans-Atlantic orientation. In fact, the reason the US admiralty bar is in such a doldrums (pardon the pun, I couldn’t resist) is that far too many of the players I’ve met in NYC are 65 year old + white males based out NY/NJ/CT who consistently look to established US and European maritime players for their business. They will concede that the future of the maritime industry is no longer centeredon trans-atlantic trade but few will make any attempt to change their thinking or their plans to take that into account. If the admiralty bar in the US is to not only survive but thrive it must adjust it’s thinking to accept the reality that it’s the West Coast and the Gulf of Mexico where one finds the greatest growth in maritime trade and international contacts.

The applicable law in Federal cases seems to be Federal Rules of Civil Procedure Rule 4(f) which has three alternate methods of serving a summons.
Rule 4(f)(1) is the method of the Hague convention.
Rule 4(f)(2) has an alternate method
Rule 4(f)(3) says that the court can authorize any method of service which is not prohibited by any rule of international law.
If the Hague convention says that it is the *only* valid method of international service, then it trumps FRCP since treaties are the same level as federal statutory law which trumps judicial rules. But I don’t think that the Hague convention says that.
The legal challenge it seems to me is to argue that the opposing counsel’s method of service was improper under Rule 4(f)(2) without annoying the judge enough so that they invoke Rule 4(f)(3).
Q: Should a construction company that does work on the US house of a foreign resident be required to serve notice of the lien on the foreign owner of the house?
If it is a mechanics lien then the governing law is statutory and a lot depends on the laws of the state involved. In most states the construction company must file a preliminary notice to the owner before filing a lien.
Which state is this hypothetical house in? 🙂 🙂 🙂

Law Office of Todd L. Platek

Wayne,
All I can say is [sighing] Yes.
Admiralty law is among the most fascinating, encompassing contracts, torts, and other areas, and is one of the few areas that one can look to cases from 1807 as well as 2007 on similar questions, to find guidance. Alas, the day is coming in NY when admiralty lawyers will walk around with parrots on their shoulders, grunting “Arrggghhh.” Nonetheless, the training we all got at Kirlin’s and Haight’s and Burlingham’s and the like, was anchored (no pun) in deep tradition and erudition, and we are the stronger for it.

First off, I gotta say, this has been one of the most interesting threads I’ve read on Dan’s site in a long while (maybe I should visit more often). Hats off to Todd and Wayne for the very informative and entertaining exchange.
I think Dan’s original point to his post raises a complex issue. The specific legal issue he used as his example points to a much larger problem that is making it difficult right now for those of us who work for American companies in China and try to advocate their interests over here. Dan mentioned a certain mindset in Texas, and Todd mentioned Louisiana, but I’d say it covers a whole lot more of the country. It’s crept into corporate culture and crystalized into bad politics.
2008 is going to be an interesting year. We’re going into unchartered waters. Hopefully the captain will be sober, on deck, and looking out at the sea, instead of arguing below deck with the crew.

Brandon – “At the very least, it provides ammunition for countries like China to retort with whenever US politicians critizice them for just about any violation of treaties they’ve signed themselves, thereby justifying all manner of bad policies to their own people and the world.”
I don’t think that has changed in recent years versus previous. The reality is that so long as the American economy and innovation is so far ahead of any particular country or trading block, there will be those who want to trade with the US but they weigh the risks (though the US may lose complaints like those on Chinese coated paper, at least WTO does provide for a system of both consequences and and a route to mediation). Further, though I believe there is a far nobler purpose to Iraq, I don’t think it’s particularly applicable here for realistically for as long as I can remember (which is long before 9/11) many around the world have always found fault with American foreign and domestic policy (pointing, arguably erroneously, to American poverty though being poor means being wealthier than the middle classes of many Scandinavian countries, how the American Indians have been treated, health care, etc.) The list goes on because there are always those who seek to find fault with what is I would call one of the most free, most innovative, most wealthy and most powerful countries in the world. Though I think there are few people who would believe that the US should not abide by the agreements to which they sign – so it comes down to interpretation it would seem is what most comments suggest?

Law Office of Todd L. Platek

Robert Berry: Thanks for the kind words. From your vantage in China, how do you see Chinese courts treating you? While dealing with a case in China, in an area not dealt with before in Chinese courts and for which there was no substantive Chinese law, I had suggested to local counsel that we give a short brief to the court on “foreign” (i.e. US and UK) law on the subject. Initially, my suggestion was shot down as possibly being perceived as an insult to Chinese sovereignty and an inferral of inadequacy. Nonetheless, in a session with the judge, the topic was gently mentioned in passing, and the judge averred that she would appreciate knowing what other legal systems were thinking in this regard. Did this assist us? The matter died a natural death, so we will never know whether it would have assisted. However, it is useful to approach such situations gingerly, case by case and judge by judge, because the commercial world is indeed shrinking and we always have the possibility of enlightening the courts.

One way of bringing US/UK precedents is by making references to Hong Kong law. Article 8 of the Basic Law makes almost all of the pre-1997 UK-based common law part of Chinese law.
One thing in discussing US/UK precedents is to have a good grounding of the basics of German law on which the PRC system is based so that you can compare and contrast the differences. The logic of German law is very, very different from US/UK case based law and that often trips up lawyers from common law jurisdictions when it comes to topics such as judicial review and constitutional law.

FOARP

In Europe we have the (somewhat flawed) Brussels Convention (now a regulation) which governs what cases may be brought and in which jurisdiction. This simplifies things somewhat in most cases as people may only be sued in their country of residence or in the country where the effect of the alleged wrongdoings is felt. The problem of what to do when, for example, you have multiple infringers of multiple patents in multiple jurisdictions, is one that has only been settled recently in GAT V LuK, and not to the satisfaction of everyone. See here if you want more information:https://www.law.washington.edu/Casrip/Newsletter/Vol14/newsv14i2US2.html
France is a somewhat strange case as, so long as the case does not involve another EC party, French citizens may recourse to French law from anywhere in the world.
Leaving aside the issues of international treaties – though the failure of the US to ratify the US-UK extradition treaty is one that particularly rankles and has done very much to hurt America’s reputation in the UK – and looking only at the the area of jurisdiction, there has been a rather uncharacteristic forebearance on the part of US courts in some areas over the past few years. In Voda v. Cordis the federal court severely limited the ability of US courts to rule on the validity of foreign patents, also, following the European Commission’s initial Microsoft decision various US courts refused to allow Microsoft to (in the words of the New York judge)”Make an end-run on the commission decision”.
I would suggest that American courts are slowly coming round to accepting that the rulings of foreign courts and international treaty obligations do at least have some weight. International trade makes up only about 10% of US GDP, it is therefore not surprising that US courts have less experience with international matters than those of other countries, and are less willing to give weight to them.

LawClerk

Just last week I was drafting an opinion and order to dismiss plaintiff’s action for failure to comply with the Hague Convention standards for service of the summons and complaint. I work for a district court judge, and I can assure the HC is alive and well-respected at the federal court for which I work. In all honesty, the issue is not with the U.S. Courts as much as it is with the countries in which you seek to effectuate service. Often, the CA is slow in completing the process, conservatively, it takes 6 months to translate all the documents and properly serve the defendant under HC.
“America” is over generalized as a nation of self-righteous citizens eager to make a profit at the expense of our integrity and the rule of law. Frankly, I don’t find that to be the case.
Having went to law school in Germany and the U.S., I can assure you that the U.S. is filled with people that break the molded stereotype that Europeans and others see when they read the biased Tagesschau or the jaded Le Monde.

RCM

UK law, in principle, requires a self-executing clause for international treaties. The Factortame case clarified to the UK what had in fact been EU law since the 1970s, prior to UK accession to the EC: that EU law was supreme in its competences, and self-executable. That’s a VERY rough summary of EU law within the UK–again, that it is self-executable (sic) and supreme where the EU has been given competence.
But outwith the EU, Britain still has a similar common law approach to international treaties. Hence you had the (UK) Human Rights Act, which codified the rights and obligations pursuant to individuals and public bodies (respectively) as enumerated in the European Convention on Human Rights.

I want my MTV. I will be speaking at a Chinese drywall seminar in New Orleans next month and that means I am on an email list that I think consists of others who will also be speaking at this seminar. Seeing as how this email list consists of around 10…

Robert

BRASS TACKS – I’m a Coca-cola and hamburger kind of guy. I see things in very simplistic terms. I used to believe “we are innocent until proven guilty,” but I realize that actually the U.S. legal system works on “The guy with the most money wins.”
Let’s not overthink, conceptualize and go on and on about the Hague Conventions. For example, I am a company in China. I get sued and served a summons by my American business partner. I receive the summons in China, I take the envelope, I read the paper. Now I have been “served.”
Okay, next step is discovery, who pays for my plane ticket to Texas? Who pays for my hotel flight? Who pays for the hotel? Who pays for a U.S. lawyer I have to hire, where her hourly rate is more than what I earn in a week?
Poppycock it all is. The founding father’s had it right, the concept of jurisdiction and being served are sound, we’ve just forgotten to apply the laws of physics. And let us not forget, the “Chinese” business partner is presumed innocent, that’s a fundamental right. Unless the U.S. wants to change that approach….

Jennings

From reading the article and browsing many of your posts it seems to me that the problem here is not the US adhering to the Hague Convention but more the respective discretionary rulings by select judge(s) that is violating a treaty of which the US is a signatory. Therefore, this would be an issue that should be addressed at the Federal level in order to force state courts to abide by the terms of the Hague Convention, but this must be handled very efficiently as states’ will not want federal interference in their judicial proceedings especially in regards to judicial discretion.

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